$285,918.49. It would seem, therefore, that the court took a sum which is nearly an average between the estimates made by the plaiutiff and by Stangroom, and rendered judgment accordingly. The uncontradicted testimony shows that the work done was about four ninths of the whole work. The price to be paid for the entire work was nine hundred thousand dollars. The twenty miles were completed according to the contract in good and workmanlike manner. Changes and deviations were made under the orders, and with the consent of McLaughlin and the railroad company. The work was turned over to the company by McLaughlin in fulfillment of his contract with the company, and according to estimates made on his behalf. If the rule be that the contractors are entitled to such proportion of the whole contract price as the work done bears to the whole work, then the evidence would warrant a judgment in favor of the plaintif for four hundred thousand dollars; but we assume that the value must be determined regardless of the prices. fixed in the contract, and it is sufficient to say that the evidence as to such value is conflicting, and the finding of the court is warranted by some of the testimony in the case.

4. The court below allowed interest on the amount recovered from June 15, 1886. Appellants attack this portion of the judgment as unwarranted by the facts and law. It may be stated, as a general principle, that interest is not allowed on unliquidated damages or demands.

This term “unliquidated damages" applies equally to cases of tort, as slander, assault and battery, etc., and to cases upon a quantum meruit, for goods sold and delivered or services rendered.

The reason of such denial of interest is said to be that the person liable does not know what sum he owes, and therefore can be in no default for not paying.

The damages in such cases are an uncertain quantity,

depending upon no fixed standard, are referred to the wise discretion of a jury, and can never be made certain except by accord or verdict.

As to such damages there can be no default, and hence the initial point at which to fix the starting of interest is wanting.

To this general rule there are many exceptions, and while it is said "a demand is unliquidated if one party alone cannot make it certain,-when it cannot be made certain by mere calculation" (1 Sutherland on Damages, 610), yet the same author in the next sentence adds, "the allowances of interest as damages is not dependent on this rigid test." A review of the cases relied upon in support of this last assertion assert this proposition.

"Whenever a debtor is in default for not paying money, delivering property, or rendering services in pursuance of his contract, justice requires that he should indemnify the creditor for the wrong which he has done him." (Van Rensselaer v. Jewett, 2 N. Y. 135; 51 Am. Dec. 275; Lush v. Drure, 4 Wend. 313; Van Rensselaer v. Jones, 2 Barb. 643; Adams v. Fort Plain Bank, 36 N. Y. 255.)

These and many other cases which might be cited from New York were mainly based upon express contracts, in which money was to be paid, services rendered, or a duty to be performed at a fixed and certain time,-cases in which the default of the debtor at the fixed period was apparent, the amount of the recovery, and not the right to recover at all, being the sole question.

This further distinction may be drawn from the New York cases: notwithstanding the damages are unliquidated and not capable of ascertainment by computation, still, if they can be determined by computation, together with a reference to well-established market values, then interest may be recovered.

The reason given for this modification of the earlier

rule is, that in many cases market values are so well established and so easily obtained, that it is easy for the debtor to obtain some proximate knowledge of how much he is to pay.

This distinction was noted by Selden, J., in McMahon v. New York and Erie R. R. Co., 20 N. Y. 463.

Under the law as held in New York at the present time, it is not far wide of the mark to say all the cases in which interest may be recovered by the creditor, upon an unliquidated demand for damages arising upon a contract, proceed upon the theory, first, that the damages are capable of ascertainment by calculation; second, that if not capable of being thus ascertained, they may be determined by reterence to well-established market values, together with computation; or, third, that the debtor is in default in not performing some obligation devolving upon him, whereby the amount of his debt could be rendered certain or susceptible of being made so by calculation.

These distinctions were referred to in McMahon v. New York and Erie R. R. Co., 20 N. Y. 463, and the right to recover interest upheld upon the third ground, namely, that it was the duty of defendant to have caused its engineer to furnish estimates of the work done, and that had he done so the amount of the claim would have been so ascertained as to carry interest.

We have referred to some of the New York cases, for the reason that we think that they are in the advance upon the question of allowing interest upon unliquidated demands.

The case at bar is not an action upon an express contract between the parties; such a contract, it is true, existed, and had plaintiff recovered under it he would have been entitled to interest upon the several payments provided for therein from the dates at which they fell due; but for reasons not now necessary to be enumerated, a recovery upon the contract has been abandoned, and plain

tiff counts upon a quantum meruit, for the performance of labor and services, precisely as he might have done had there been no contract.

His services and the material furnished by him were uncertain as to amount, character, value, and time of payment, until fixed by a verdict or findings of the court. They were not of a character to have a fixed or ascertainable market value.

They could not be ascertained by computation, either in extent or value. Defendant was not in default for not ascertaining that which, outside of the abandoned contract, he could not ascertain except by an accord or by verdict, or its equivalent.

In Bank of California v. Northam, 51 Cal. 387, this court held that interest could not be recovered upon an account for goods, wares, and merchandise sold and deliv ered. In Brady v. Wilcoxson, 44 Cal. 239, it was said: "The plaintiffs are not entitled to interest. Their claim was an uncertain and unliquidated demand. The amount due cannot be ascertained from the face of the contract, but is to be settled by process of law on such demands; interest eo nomine cannot be allowed."

The case of Homer v. Hathaway, 33 Cal. 117, cited by respondent, was an action of trover, in which the rule as to damages is quite different from that in cases like the one at bar. The rule in such cases was, that the plaintiff could recover the value of the property, with legal interest from the time at which the value is estimated. (Douglass v. Kraft, 9 Cal. 562.) Section 3336 of our Civil Code has substantially continued the rule as it existed previously, with the addition that under certain specified circumstances no interest can be recovered.

In McFadden. v. Crawford, 39 Cal. 662, which was an action for work, labor, and services, this court allowed interest on the demand from the date of the filing of the complaint, reversing the action of the court below, allowing interest from the rendition of the services.

terest.

The rule thus enunciated finds some support in Sutherland on Damages, where it is said: "After demand, or after commencement of suit, accounts generally bear inThe commencement of suit is a formal demand. Accounts are generally made of items which represent money paid, goods sold and delivered, or services rendered, on request. They are severally demands on which interest may be claimed, though the price had not been fixed by agreement, and must be established by evidence." (1 Sutherland on Damages, 616.)

The same author adds that "where, however, the account or demand is for particulars, the value or amount of which cannot be measured or ascertained by reference to market rates, and are intrinsically uncertain, or the creditor's demand of payment is excessive or vague, a different case is presented."

The distinction mentioned is pointed out in many of the cases, and it is only by bearing it in mind that otherwise. apparent conflict can be reconciled.

We are not prepared to say, in general terms, that no interest in any case can be recovered in an action upon contract for an unliquidated demand. Mix v. Miller, 57 Cal. 356, decided since the adoption of the code, and McFadden v. Crawford, supra, decided previously, attest the doctrine that in this state interest is allowable on such demand under some circumstances.

These were cases in which the contract had been fully performed by the creditors, the fruits thereof accepted by the debtors, without objection, and they were clearly in default, and in the latter case the only question was as to value.

But where, as in the case at bar, the amount of the services, their character and value, can only be established by evidence in court, or by an accord between the parties, and are not susceptible of ascertainment, either by computation or by reference to market rates, or other known